As we wait for Friday's bail hearing, in which the defendant is widely expected to be released upon his own recognizance, here are five quick things to keep in mind about what's happened and why.
1. No, the Times' story doesn't prove Strauss-Kahn's innocence any more than earlier reports leaked by the police proved his guilt. But, today, that's almost beside the point. Criminal trials are only marginally about searching for the truth of the matter. They are, instead, mostly a searing test of evidence. What can be proved by the government beyond a reasonable doubt? In the Kahn case, especially if the Kahn team were to concede that some sort of sexual encounter took place, the key test would be the credibility of the accuser versus the credibility of the defendant. And now, if the Times' story is true, there are grave doubts about the credibility of the complaining witness.
2. I won't get into the details of the credibility issues but one leaps out. Prosecutors could perhaps explain away why the alleged victim might not have been perfectly honest in an application for asylum -- many people fudge facts to try to stay in America -- but it will be virtually impossible to neutralize this (from the Times' piece):
According to the two officials, the woman had a phone conversation with an incarcerated man within a day of her encounter with Mr. Strauss-Kahn in which she discussed the possible benefits of pursuing the charges against him. The conversation was recorded.
If this is true, it establishes a motive for the woman to (falsely) accuse Kahn of rape after a consensual sexual encounter. It is enough, alone, to establish reasonable doubt? Prosecutors seem to think so and they are probably right.
3. If, as the Times reports, the "parties are discussing whether to dismiss the felony charges" against Strauss-Kahn it's a good bet this will happen sooner rather than later. Prosecutors don't bail from high-profile cases six weeks into them unless they have good reason to-- they don't even talk about bailing from such cases unless they have a good reason to. The lawyers know that credibility issues like the ones raised here don't get easier to handle (read: explain away) as the case nears trial. And, don't forget, prosecutors have legal and ethical obligations not to pursue a criminal case they don't reasonably believe they can win.
4. If the case against Strauss-Kahn indeed crumbles, don't be surprised if prosecutors end up charging the alleged victim and the man who has reportedly deposited all that money into her account over the years. New York officials would do this partially to save face-- the whole episode teeters now on the edge of world-wide embarrassment-- but also to make an example of the pair. "Thou Shalt Not Bear False Witness" isn't just one of the Ten Commandments. It's also a crime (and perhaps a federal crime, too) to set someone up. Again, just to be clear, I couch all of this with a big "if."